Ferguson v. Lederer, Strauss & Co.

McClain, J. 1. depositions: failure to file in time. Error is assigned on the action of the trial court in receiving and considering, over defendants’ objection, the deposition of William Johnson, the bankrupt, the ground of the objection being that it was not filed by the clerk, as required in Code, sec--(¿on 4^0^. It appears that when the case came on for trial in February, 1903, it was contended by defendants that this deposition, offered in evidence for the plaintiff, should not be read, on the ground that defendants had no notice of its having been filed and had not had sufficient time to file a motion to suppress it, and that it had not been filed within thirty days of the time it had been taken, as required by Code, section 4705. Thereupon the court ordered the deposition to be filed at that time, and continued the case. When the ease again came on for trial, the objection that the deposition had not been properly filed seems not to have been renewed; but it is now argued that the deposition should not have been considered for that reason. We think there is no merit in this contention. When the deposition was finally received in evidence and considered, it had been duly filed under the direction of the court, and the defendants had sufficient notice of such filing. The only objection, as we understand it, is that the filing was not within thirty days after the deposition was taken. It is, however, provided by Code, section 4708, that “unimportant deviations from any of the above -directions shall not cause the deposition to be excluded, where no substantial prejudice could be wrought to the opposite party thereby.” It ap-. peared from the statement of one of the counsel who repre [288] sented defendants on the trial in the lower court that he examined the deposition more than a year prior to its being first offered in evidence, and there is not the slightest ground to believe, tha-t it had not been accessible to defendants’ attorneys, and used by them in making preparation for the trial. No prejudice could have resulted to defendants from the technical failure of the clerk to indorse the deposition as filed, and the continuance of the case thereafter upon defendants’ request removed all possible objection to the receipt of the deposition in evidence when -the case was called for trial. 2. bankruptcy pleadings. Counsel for defendants elaborately argue the question whether the insolvency of the bankrupt at the time the transfer to defendants was made, the intention of the bankrupt to prefer defendants to other creditors with reasonable cause on the part of the defendants to believe that the bankrupt thereby intended to give a preference, and the fact that the transfer was made with the intent and purpose on the part of the bankrupt to hinder, delay, or defraud his creditors, are sufficiently alleged in the petition and established by the evidence. The substantial allegations of the petition as to these matters are that at the time of the transfer the bankrupt had no other property or estate available for the payment of his debts except the stock of goods above described, and that no provision whatever was made by him or by the defendants for payment of the other debts owing -by said bankrupt, and aggregating from $600 to $700; that the bankrupt was then owing the defendants the sum of about $2,000; and that with intent to collect their claim in full, and in fraud towards all other creditors of the bankrupt, the defendants accepted such transfer in the way of payment for said debt; that the transfer to defendants was fraudulent, with intent on the part of both said Johnson and the defendants to give to defendants an illegal and undue preference-over other creditors, of said bankrupt; and- that said [289] transfer was made with intent upon the part of all the parties thereunto to hinder, delay, and defraud all other creditors of said bankrupt. We think these allegations are sufficient to show the insolvency of the bankrupt at the time the transfer was made, and that by such transfer the bankrupt gave the preference to defendants as creditors over other creditors, and that defendants had reasonable cause to believe that it was intended thereby to give a preference. These are the essential allegations under section 60b, Bankr. Act July 1, 1898, c. 54-1, 30 St-at. 562 [U. S. Comp. St. 1901, p. 3445]. The petition- further sufficiently alleges that the transfer was with intent and purpose on the part of the bankrupt to hinder, delay, and defraud his creditors other than defendants, and that the defendants participated in this intention. These are the essential allegations under section 67e, Bankr. Act (30 Stat. 564 [U. S. Comp. St. 1901, p. 344-9]). If the allegations of the petition were not sufficiently specific in these respects, the defendants should have asked for a more specific statement. There was not such a want of essential averments as to justify us in holding that the trial court should not have granted any relief to plaintiff on account of the insufficiency of the petition. 3. preferences: aste" t0 set transfer. As to the evidence, the principal contention for defendants is that they are not shown to have had reasonable cause to believe that Johnson was insolvent at the time the transfer was made, and that it was his intern-ti°n thereby to give them a preference over other creditors. But, without discussing the details of the evidence, it is sufficient to say that we find in the record ample evidence to' sustain the judgment of the court. This is a law action, and we are not justified in interfering with the conclusions of fact drawn by the trial court from the evidence, and essential to sustain th,e judgment, unless such essential findings are entirely without support. in the evidence. We reach the same conclusion as to [290] the evidence tending to show a participation by defendants in the intention and purpose of the bankrupt to hinder, delay, and defraud his other creditors. It appears beyond controversy that the agents of the defendants who acted for them in procuring and accepting this transfer had knowledge that the bankrupt was otherwise indebted, and that he had substantially no other property subject to the payment of his debts; but, although the business of the defendants was entirely a wholesale business, their agents accepted from the bankrupt an assignment of a stock of goods which defendants agreed was not -worth to exceed $1,000, in full satisfaction of an indebtedness of over $2,00.0. All the circumstances surrounding the transaction tend very strongly to show a purpose on the part of the agents of the defendants to secure their claim from an insolvent debtor to the exclusion of other creditors. Such a purpose renders the transfer made within four months preceding bankruptcy void, and subject to be set aside at the suit of the trustee in bankruptcy. Bardes v. Bank of Hawarden, 122 Iowa, 443. Further discussion of the facts of the case and consideration of the numerous authorities cited on either side would seem to be wholly superfluous. The judgment of the trial court is affirmed.